Hess v. Zimmer

SiebecKee, J.

The appellant contends that the evidence shows without dispute that he was ready and willing to comply with the contract to marry respondent. The evidence adduced does not sustain this claim. The good faith of the appellant’s verbal professions of his readiness to carry out the contract, when he was informed by the respondent that she would not longer submit to his delays in the matter and when she left his house, was abundantly negatived by his conduct tending to show that he had throughout the whole period of the existence of his promises made unfounded excuses and raised pretended barriers to avoid its consummation. The facts and1 circumstances adduced in evidence permit of the inference that the appellant wilfully refused to become united in marriage with the plaintiff and that he intended to evade his promises to her. The jury’s findings to this effect are abundantly supported by the evidence, and this court cannot disturb them.

The court instructed the jury to the effect that the defendant could not escape the consequences of his refusal to marry, resulting in a breach of the contract, by a final half-hearted offer to consummate it, if it appeared that his bad faith and deceit had barred the possibility of a happy result of the marriage. It is contended that this instruction confused and misled the jury and that they were thereby led to understand that they would be justified in finding'that the defendant was guilty of a breach of the contract if they should find that his conduct was incompatible with any happy results if the marriage were in fact consummated. We cannot ascribe-such a result to this instruction. While the language used obscures somewhat the idea sought to be expressed, -it does not embody an erroneous direction to the jury, and we must presume that the jury understood’it correctly. When applied to the issues embraced in the question of the special verdict, there is nothing in the record to indicate that the jury were in any way misled by this instruction.

The appellant requested the court to submit to the jury the question: “Was the defendant at all times, from the time of promise to marry the plaintiff up to the time of the commencement of this action, willing to marry the plaintiff?” The verdict embraced this issue, as appears by questions numbered 3 and 4, and hence the refusal of the court to submit this question could in no way prejudice the appellant.

It is contended that the damages are excessive. The jury were justified to conclude that the defendant owned property of the value, of $12,000 and that he had seduced the plaintiff through his promises- of marriage. The record does not present such a case that this court can say that the amount found by the jury was excessive. Olson v. Solveson, 71 Wis. 663, 38 N. W. 329; Salchert v. Reinig, 135 Wis. 194, 115 N. W. 132.

By the Oowrt. — The judgment appealed from is affirmed.